Children: Competence and Oath Taking

Before a child witness may give evidence, the presiding officer must be satisfied that he or she is a competent witness. The term ‘competence’ refers the ability to give evidence in a court of law. If a witness is found to be incompetent by the court, the witness is denied the opportunity of taking the witness stand altogether[1]

There is a general presumption in our law that all potential witnesses are competent. This means that their competence is assumed, unless the contrary is proved. Section 192 of the Criminal Procedure Act 51 of 1977 provides that ‘every person not expressly excluded from this Act from giving evidence shall, subject to the provisions of section 206, be competent and compellable to give evidence in criminal proceedings.’ There is no express provision in the Act relating to the competence of children to give evidence in criminal courts. Section 206 of the Criminal Procedure Act 51 of 1977 provides that the law as to the competency, compellability or privilege of witnesses which was in force in respect of criminal proceedings on the thirtieth day of May 1961 shall apply in any case not expressly provided for in this Act or in any other law. This is thus the law which applies to the competence of children to give evidence in criminal court. In the case of children, the duty is on the witness to satisfy the court that he or she is competent.

In terms of the applicable law, children will be regarded as competent to give evidence only if the court is satisfied that the child understands what it means to tell the truth, and can understand and answer questions put to him/her.[2] There is no specific age at which a child can automatically be assumed to have competence to testify. In each case the presiding officer must satisfy him or herself that the child has the necessary competence. [3]

The crucial question is whether, subjectively, the presiding officer is of the opinion that the child understands the concept of truthfulness. The presiding officer can satisfy himself or herself of this by asking questions of the child; counsel may also pose questions to this end.[4] Expert witnesses may also be called. In South African courts, children as young as three (3) have been found to be competent to testify in court.[5] But this is the exception rather than the norm. With younger children particularly, extraordinary skill is required to truly establish whether the witness understands what it means to tell the truth. It appears that many of the presiding officers in South African courts are woefully ill equipped to illicit the information required to make such an assessment.[6] The difficulty is compounded when an interpreter is used. It has been said that magistrates often lack any expertise in assessing the competency of children to testify.[7]

The consequences of the presiding officer not establishing the competence of the child witness are extremely serious. The child’s evidence will be inadmissible – and this can lead to the conviction of the accused being set aside by a higher court. There are many examples of this in our case law. For example, in the case of S v T[8] it was clear that the trial court magistrate had not been convinced that the child understood the concept of truthfulness. That in itself was sufficient to render the proceedings irregular. The magistrate in the case erred further by allowing the five year old child to testify by whispering her answers to questions to her mother who then relayed them to court. There is nothing in our law which allows for this – and this too rendered the trial irregular. The conviction of the accused was thus set aside.

In a more recent case, S v Kondile[9] , the only question asked of the child witness to establish competence was: “Do you know what it means to tell the truth?” to which the child replied “Yes- it is to tell the truth”. The magistrate accepted this as showing that the child was competent. However, when the case was taken on review, the high court found that there was no basis in the brief exchange to conclude that the child understood the concept of truthfulness. The conviction of the accused on one of the charges against him was set aside on this basis.

Next I consider the administration of the oath.

Section 162 of the Criminal Procedure Act 51 of 1977 requires that all witnesses be sworn in before testifying. There are two exceptions to this rule, which are contained in sections 163 and 164 of the Criminal Procedure Act 51 of 1977. Section 163 provides that if the witness objects to taking the oath he or she may make an affirmation to tell the truth instead. The affirmation is phrased similarly to the oath, but omits any reference to God. Section 164 of the Criminal Procedure Act 51 of 1977 provides that if a person is unable to understand the nature and effect of the oath or affirmation, he or she may be allowed to testify provided the presiding officer simply admonishes the witness to tell the truth.

In R v Manda[10] it was observed that “A child may not understand the nature or recognise the obligation of an oath or an affirmation and yet may appear to the court to be more than ordinarily intelligent, observant and honest.”

Prior to the admonishment being administered, the court must be satisfied that the child can distinguish between truth and lies.[11]

Prior to the landmark case of S v B[12] the court held that before a presiding officer would be legally justified in admonishing a child to tell the truth he would have to explicitly establish from the child that he or she did not understand the nature and sanctity of the oath or affirmation. The unfortunate legal consequence flowing from this approach was that in cases where presiding officers did not specifically ask the child witness whether he or she understood the oath – and simply proceeded to warn the child to tell the truth, the evidence given by the child witness was regarded as inadmissible.[13] Inadmissible evidence must be completely disregarded by the court. Thus, in cases in which the presiding officer had convicted the accused on the basis of the child’s evidence, the conviction would be overturned by a higher court. This occurred in alarmingly many cases.[14]

The Supreme Court of Appeal in the case of S v B 2003 (1) SACR 52 SCA took a different approach to section 164 of the Criminal Procedure Act 51 of 1977, and held that the presiding officer does not have to hold an explicit enquiry to determine that a child witness does not comprehend the oath or affirmation before proceeding to admonish the witness to tell the truth. All that is required in terms of this approach is that there be some rational basis to justify the presiding officer reaching the conclusion that the witness did not understand the oath or affirmation. The court held that in some cases the mere age of the witness would be sufficient to justify the conclusion that the child did not understand the oath – but did not specify at what age it could be assumed that the child could not comprehend the nature and sanctity of the oath. This decision was confirmed in Director of Public Prosecutions, Kwa Zulu Natal v Mekka.[15]

In the case of S v Kondile 2003 (2) SACR 221 (CkH), the accused was convicted of housebreaking with intent to assault, and assault. The conviction on the count of assault rested solely on the testimony of a ten year old child who was assaulted by the accused after he broke into the house. The case went on automatic review to the Ciskei high court. The court set aside the conviction on the count of assault on the basis that the complainant child's evidence was inadmissible. This was but a small victory for the accused as the court did not alter the original sentence imposed by the court a quo.

The magistrate in the court a quo admonished the witness to tell the truth, but was found not to have complied with s 164 of the Criminal Procedure Act 1977 in that he neglected to establish whether the child understood the nature of the oath or affirmation before electing to administer the admonition.

The Ciskei high court held that it was apparent that s 164 required an enquiry before the decision to administer the admonition be taken. This finding runs counter to the decision by the Supreme Court of Appeal in the case of S v B[16] (confirmed in Director of Public Prosecutions, KZN v Mekka[17] to the effect that an investigation is not required - all that is required is that the presiding officer form the opinion that the witness does not understand the nature and import of the oath or affirmation.

In the present case there was no basis on which the presiding magistrate could have formed the opinion that the child could not understand the oath or affirmation, or that the child was a competent witness. This is because the only relevant question asked of the witness was 'Do you know what it means to tell the truth?' to which the child replied: 'Yes - it is to speak the truth.' The high court found that there was no basis in this exchange to conclude that the admonition should be administered, nor that the witness was competent.

The magistrate attempted to justify his omission by explaining that questions pertaining to a child witness's competence should be kept to a bare minimum to minimize the witness's stress. The high court correctly dismissed this reasoning as fundamentally flawed - stressing that competence and the justification for admonishing the witness must be established. It goes without saying that this should of course be done with the utmost sensitivity.

There is strong opinion to the effect that the general presumption of competence should apply to children - in which case it would still be necessary for the magistrate to comply with s 164 in establishing that the witness did not understand the nature and import of the oath and affirmation prior to administering the admonition. It would not however be necessary for him to establish that the child understands the meaning of telling the truth, can distinguish between right and wrong and can act in accordance with that appreciation. This would be presumed until the contrary is proved.

The conflicting approaches were tested in the case of S v Chalale[18] where the magistrate did not enquire as to whether two child witnesses understood the oath before proceeding to admonish them to tell the truth. The case went on review to a higher court and one of the grounds of review was that section 164 of the Criminal Procedure Act 51 of 1977 had not been complied with. The child witnesses in this case were aged fifteen (15) and seventeen (17). The magistrate argued that he had assumed on the basis of the witnesses’ age that they lacked the capacity to comprehend the oath, and had thus proceeded to admonish them to tell the truth. The high court disagreed with the approach taken by the magistrate, holding that children of fifteen (15) and seventeen (17) usually do understand the nature and sanctity of the oath, and cannot therefore be presumed not to understand it. There was thus no rational basis for the magistrate to have concluded that the admonishment could be applied without enquiry into the witnesses understanding of the oath.

In the case of S v Gallant[19] the high court made a similar finding where the child witnesses were eleven (11) and fourteen (14) holding that the magistrate was not justified in simply assuming that they would not understand the oath in view of their ages. The court observed obiter that it would usually only be justified in assuming a lack of understanding of the oath from age seven downwards. The magistrate therefore acted irregularly in admonishing them without holding a formal enquiry into their appreciation of the oath. Another error made by the magistrate in this case was to assume that because certain of the witnesses were of the Islamic faith they would automatically object to taking the oath. Although the oath has a religious connotation – it is not linked to any one particular religion. In view of the irregularities in this case, the accused succeeded in the appeal against his conviction.

There is no specific form that the admonishment must take. In the case of S v QN[20] the appellant argued that the complainant had not been correctly admonished, on the basis that section 164(2) of the Criminal Procedure Act (51 of 1977) had not specifically been referred to. This section provides that anything wilfully and falsely said under admonishment will result in the same penalties as if the evidence were sworn. The court held that the admonishment had not needed to refer specifically to the threat inherent in section 164(2) of the Criminal Procedure Act (51 of 1977) for it to be proper. In other words, there was no need to tell the six-year old complainant that punishment similar to that for perjury would follow if she wilfully and falsely stated an untruth.[21] The court held that all that was required was that the witness had to “understand that an adverse sanction will generally follow the telling of a lie.”[22] This is correct, and it would be nonsensical to require a magistrate to warn a six-year old child (as the complainant was in this case) of the possibility of criminal sanctions for lying when such a child is in any event doli incapax. The court thus confirmed that the child was a competent witness, who had been properly admonished.[23]

In the case of S v Matshivha[24] , the appellant was convicted in the high court of rape and murder. He appealed against his conviction on both counts. It is the appeal against the conviction for rape that this discussion will focus on. The appellant's conviction of rape was based on the evidence of the complainant and her brother who were 8 and 13 years old respectively at the time of the trial. They both identified the appellant as the perpetrator of the crime. The Supreme Court of Appeal, mero motu, raised the question of whether the evidence given by the children was properly before the court in light of how the issue of their competence to testify was dealt with and how they were sworn in.

In order for a child to be a competent witness the child must be able to demonstrate that s/he understands the difference between truth and falsehood and must have sufficient cognitive ability, including the ability to understand questions put and formulate rational answers in response. There is no standard test for this.[25] If the child is competent the court must then proceed to swear the child in. The capacity to understand the distinction between truth and lies is a prerequisite for the oath or admonishment to be administered.[26]

The questioning of the child to establish whether she understands the difference between truth and lies should, in this author's submission, establish that the child understands that a lie involves deliberately deceiving another person by providing inaccurate, incomplete or otherwise misleading information. This need not be done in an overly technical manner.[27]

In this author's submission it would be desirable to develop a standard test to be used in South African courts to establish a child's competence to testify - although this would possibly raise the spectre of children being coached to 'pass' the test.

In the case of S v Mokoena, S v Phaswane[28] it was argued that the competency test should be abolished since even a child who could not demonstrate to the court that she understood the distinction between truth and lies might be capable of providing reliable testimony. This argument is in line with international research which suggests that there is little correlation between a demonstrated ability to distinguish truth and lies and actual truth telling.[29] This argument was however rejected by the Constitutional Court in the case of Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development[30] where the Court held that the risk of false convictions was too high to abolish the competency test.[31]

The court must establish whether the child has the ability to understand the nature and the import of the oath. If so, the child may be sworn in in the usual way. If not, then the court must simply admonish the child to tell the truth. The admonishment must convey to the child that s/he is required to tell the truth and that there will be negative consequences if s/he does not. There is no set format for the admonishment. Empirical research suggests that truth telling is promoted by simply asking the child, in a developmentally appropriate way, to tell the truth.[32]

In Matshivha's case[33], it was established that the transcript did not contain the full record of all that had transpired between the judge and the child witnesses before they testified. The transcript was thus supplemented with an affidavit prepared after listening to the audio recording of the proceedings. The court assumed, without deciding, that the affidavit could be taken into account in deciding on the question of the admissibility of the children's evidence.[34]

The Supreme Court of Appeal held that it was clear from the wording of s 164(1) of the Criminal Procedure Act that for it to be triggered there must be a finding that the witness does not understand the nature and import of the oath. The court held that the finding must be 'preceded by some kind of enquiry by the judicial officer to establish whether the witness understands the nature and import of the oath.'[35]

If the enquiry shows that the child does not understand it, the court must establish whether the child can differentiate truth and lies, and if so, proceed to admonish the witness.[36]  In analysing the questions put to the child witnesses, the court was not satisfied that there was a clear purpose behind the questions asked of the children. The court found further that the witnesses were 'simply sworn in before their capacity to understand the nature and import of the oath was established.'[37] The court referred to the case of Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development[38]in which the Constitutional Court held that the reason it is imperative for a child witness to show that he understands the concept of truth is that a child who cannot show this is not reliable. In consequence the admission of the child's evidence in these circumstances would jeopardise the accused's right to a fair trial. The Constitutional Court held that what the court should be trying to ascertain is not whether the child has an understanding of abstract notions of truth and falsehood but simply that the child understands what it means to tell the truth.

With respect, the extracts quoted from the Constitutional Court case in Matshivha supra do not deal with the issue which was before it, which was whether it had been established that the children understood the nature and import of the oath before they were sworn In.[39] The court a quo had questioned the complainant about the distinction between truth and lies and she had said that she spoke truth not lies.[40] The court a quo had questioned the complainant's brother in this regard too and although the child clearly did not understand the judge's initial questions the child eventually said that when a person is telling the truth, he is saying things that he is sure of. This is a good definition of truthfulness, and the presiding officer was clearly impressed with the boy in this regard.

It is clear from the supplemented transcript that the court a quo did not question the complainant at all on her understanding of the oath. However in respect of her brother, there was an attempt made to explain the concept of oath taking to him in a way he would understand. After the oath was administered the child said 'God help me to tell the truth.'[41]

 Nevertheless, the Supreme Court of Appeal found that the questions put to the children were insufficient to establish that they understood the nature of the oath, and their evidence was thus set aside as inadmissible. Since their evidence formed the basis of the appellant's conviction, the conviction was set aside.

The decision in Matshivha[42] stands in contrast to that in the case of Mangoma v S.[43]  In the Mangoma case[44] the appellant appealed against his conviction for the rape of his 13-year-old daughter. One of the grounds of the appeal was that the complainant and her brother, who were 13 and 12 years old respectively at the time of the incident, were not properly sworn in or admonished to tell the truth and that their evidence was thus inadmissible and unable to support the conviction.[45] In the heads of argument, the state conceded that the two child witnesses had not been properly sworn in and were not admonished to tell the truth. The court found that the concession was unwarranted, and the state then conceded that it had been made without proper thought and due to a misreading of the record.[46] (at para [3]). The record revealed that the children were sworn in, and that thereafter a very short enquiry into whether each of them understood the meaning of the truth had followed. The Supreme Court of Appeal noted that the sequence was wrong: the ability of a witness to understand the distinction between truth and falsehood must precede the oath or admonishment.[47] The Supreme Court of Appeal noted also that had there been any doubt about whether the children understood the nature and import of the oath, the admonishment ought to have been administered.[48] However the court found that there was nothing on the record to indicate that any doubt about whether the children understood the difference between truth and falsehood ought to have been entertained, and that notwithstanding the fact that the oath had been administered prior to establishing the children's competence, the principles established in the case of S v B[49] (and confirmed in Director of Public Prosecutions, KwaZulu Natal v Mekka[50]) ought to have been followed, namely: that all that was required was for the presiding officer to form an opinion that the children understood the oath, that a formal enquiry need not be held into this, and that the finding need not be noted.[51]  Accordingly the Supreme Court of Appeal found that there had been no irregularity regarding the admission of the children's evidence. The state conceded this point and agreed that the case should be decided on its merits.[52]

In the case of S v Mudau[53] the Supreme Court of Appeal commented that '[olur country is plainly facing a crisis of epidemic proportions in respect of rape, particularly of young children. The rape statistics induce of sense of shock and disbelief.'[54] In such a climate, it is submitted that the evidence of child witnesses should not be excluded unnecessarily. The flexibility regarding the establishment of competence and the administration of the oath to children in Mangoma[55] is to be preferred to the more rigid approach shown in the Matshivha case.[56] It is in the interests of justice that child witnesses not be excluded unnecessarily.[57]

By

Nicola Whitear

Snr Lecturer, UKZN, PMB

[1] DT Zeffertt; AP Paizes & Skeen The South African Law of Evidence 1 ed, 2003 Lexis Nexis, Jhb at page 665.

[2] DT Zeffertt; AP Paizes & Skeen The South African Law of Evidence 1 ed, 2003 Lexis Nexis, Jhb at page 671.

[3] S v L 1973 (1) SA 344 (C); S v T 1973 (3) SA 794 (A).

[4] DT Zeffertt & AP Paizes The South African Law of Evidence 2 ed, 2009 Lexis Nexis, Jhb at page 813

[5] see, for example, R v Manda 1951 (3) SA 158 A; R v Bell 1929 CPD; R v J 1958 (3) SA 699.

[6] South African Law Commission, Issue Paper 10, Project 108, Sexual Offences Against Children at pg 70, fn 175.

[7] S v F 1989 1 SA 460 (ZH).

[8] S v T 1973 (3) SA 794

[9] S v Kondile 2003 (2) SACR 221 (CkH), discussed in N Whitear-Nel Evidence:Recent Cases 2004 17 South African Journal of Criminal Justice 131 at 133-4

[10] R v Manda 1951 (3) SA 158 (A) at 163

[11] S v V 1998 (2) SACR 651 (C), Matshiva v The State [2013] ZASCA 124

[12] S v B 2003 (1) SACR 52 (SCA)

[13] KD Muller God and Damnation: The Meaning and Religious Sanctity of the Oath (2013) 37:1 De Jure 135.

[14] See for example S v Kondile 2003 (2) SACR 221 CkH, S v Malinga 2002 (1) SACR 615 N, PJ Schwikkard The Abused Child: A Few Rules of Evidence Considered (1996) Acta Juridica 148; PJ Schwikkard Case Review: Evidence – Children’s Testimony 2002 15:3 South African Journal of Criminal Justice 402.

[15] Director of Public Prosecutions, KZN v Mekka 2003 (4) SA 275 (SCA)

[16] S v B 2003 (1) SACR 52 (SCA)

[17] Director of Public Prosecutions, KZN v Mekka 2003 (4) SA 275 (SCA)

[18] S v Chalale 2004 (2) SACR 264 (W), discussed in N Whitear-Nel Evidence Case Reviews 2005 18 South African Journal of Criminal Justice 106 at 106-7.

[19] S v Gallant 2008 (1) SACR 196 (ECD), discussed in N Whitear-Nel Evidence Case Reviews 2008 21 South African Journal of Criminal Justice 229 at 231-2.

[20] S v QN 2012 1 SACR 1 SACR 380 (KZP), discussed in N Whitear-Nel & W Banoobhai Children’s Evidence in Sexual Cases in the context of S v QN 2012 (1) SACR 380 KZP (2013) Obiter 359; N Whitear-Nel Evidence Case Reviews 2012 25 South Afrtican Journal of Criminal Justice 329 at 329-334..

[21] S v QN 2012 1 SACR 1 SACR 380 (KZP) at para 10. N Whitear-Nel & W Banoobhai Children’s Evidence in Sexual Cases in the context of S v QN 2012 (1) SACR 380 KZP (2013) Obiter 359

 At p 361

[22] S v QN 2012 1 SACR 1 SACR 380 (KZP) at para 11. N Whitear-Nel & W Banoobhai Children’s Evidence in Sexual Cases in the context of S v QN 2012 (1) SACR 380 KZP (2013) Obiter 359

 At p 361.

[23] S v QN 2012 1 SACR 1 SACR 380 (KZP) at para 11. N Whitear-Nel & W Banoobhai Children’s Evidence in Sexual Cases in the context of S v QN 2012 (1) SACR 380 KZP (2013) Obiter 359

 at p 361.

[24] S v Matshivha 2014 (1) SACR 29 (SCA)

[25] S v Swartz 2009 (1) SACR 452 (C) at para 20.

[26] S v Swartz 2009 (1) SACR 452 (C) at para 14.

[27] Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (2) SACR 130 (CC) at para 164.

[28] S v Mokoena, S v Phaswane 2008 (2) SACR 216 (T)

[29] JZ Klemfuss and SJ Ceci 'Legal and psychological perspectives on children's competence to testify in court' (2012) 32 Developmental Review 268 at 277.

[30] Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (2) SACR 130 (CC)

[31] Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (2) SACR 130 (CC) at para 165

[32] JZ Klemfuss and SJ Ceci 'Legal and psychological perspectives on children's competence to testify in court' (2012) 32 Developmental Review 268 at 275.

[33] S v Matshivha 2014 (1) SACR 29 (SCA)

[34] S v Matshivha 2014 (1) SACR 29 (SCA) at para 4.

[35] S v Matshivha 2014 (1) SACR 29 (SCA) at para 11.

[36] S v Matshivha 2014 (1) SACR 29 (SCA) at para 11.

[37] S v Matshivha 2014 (1) SACR 29 (SCA) at para 12.

[38] Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (2) SACR 130 (CC)

[39] S v Matshivha 2014 (1) SACR 29 (SCA) at para 12.

[40] S v Matshivha 2014 (1) SACR 29 (SCA) at para 7.

[41] S v Matshivha 2014 (1) SACR 29 (SCA) at para 8.

[42] S v Matshivha 2014 (1) SACR 29 (SCA).

[43] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013).

[44] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013).

[45] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 4.

[46] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 3.

[47] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 5.

[48] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 5.

[49] S v B 2003 (1) SACR 52 (SCA).

[50] Director of Public Prosecutions, KwaZulu Natal v Mekka 2003 (2) SACR 1 (SCA).

[51] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 15.

[52] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013) at para 5.

[53] S v Mudau 2013 (2) SACR 292 (SCA).

[54] S v Mudau 2013 (2) SACR 292 (SCA) at para 14.

[55] Mangoma v S (155/13) [2013] ZASCA 205 (2 December 2013)

[56] S v Matshivha 2014 (1) SACR 29 (SCA)

[57] S v Swartz 2009 (1) SACR 452 (C) at para 21.

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